Supreme Court narrows constitutionally protected collective bargaining

Historical context
Supreme Court decision in Fraser
Implications

On April 29 2011 the Supreme Court of Canada released a landmark decision in Ontario (Attorney General) v Fraser(1) holding that the Agricultural Employees Protection Act 2002,(2) which created a new and distinct industrial relations regime for agricultural workers, is constitutional. Fraser makes clear that the guarantee of freedom of association in Section 2(d) of the Canadian Charter of Rights and Freedoms(3) does not require the enactment of a particular model of industrial relations or a particular model of collective bargaining, and represents a significant retrenchment from prior case law granting constitutional protection to collective bargaining.

Historical context

Ontario agricultural workers have long been excluded from the Ontario Labour Relations Act 1995(4) and without the right to unionise and collectively bargain with their employers. In 1994 the Ontario government enacted the Agricultural Labour Relations Act 1994,(5) which briefly extended these rights to agricultural workers. These rights were revoked the following year by a newly elected government. Several agricultural workers and the United Food and Commercial Workers' Union challenged the continued exclusion of agricultural workers from the Labour Relations Act 1995. The Supreme Court of Canada in Dunmore v Ontario (Attorney General)(6) ruled that the exclusion of agricultural workers violated their right to freedom of association guaranteed by Section 2(d) of the charter. In response, the Ontario government enacted the Agricultural Employees Protection Act 2002. This act created a new labour relations regime for agricultural workers distinct from the Wagner Act model in place for most Ontario workers. Under the Agricultural Employees Protection Act 2002, agricultural workers were granted the right to:

• form or join employees' representative associations;
• participate in the lawful activities of the associations;
• make oral or written representations about working terms and conditions to farmers through these associations; and
• protection against interference, coercion and discrimination in the exercise of these rights.

Under the Agricultural Employees Protection Act 2002, farmers are required to give employees' associations a "reasonable opportunity" to make representations about working terms and conditions. If the representations are written, the employer must read them; if the representations are made orally, the employer must listen to them. Farmers are not required to bargain collectively with employees' associations.

In 2006 an agricultural worker and the United Food and Commercial Workers' Union brought an application for a declaration that the Agricultural Employees Protection Act 2002 and the exclusion of agricultural workers from the collective bargaining regime under the Labour Relations Act 1995 are unconstitutional. In Fraser v Ontario(7) the Ontario Court of Appeal ruled that the Agricultural Employees Protection Act is unconstitutional because it violates Section 2(d) of the charter by providing insufficient statutory protection for collective bargaining. The court of appeal relied on the decision in Health Services and Support-Facilities Subsector Bargaining Assn v British Columbia (BC Health Services).(8) In BC Health Services the Supreme Court of Canada held that Section 2(d) of the charter includes limited protection for collective bargaining. The Supreme Court stated that Section 2(d) protects a process of collective bargaining and does not guarantee a substantive or economic outcome. The Supreme Court stated that only a general process of collective bargaining is protected, and not a particular model of labour relations or a specific bargaining method. Finally, the Supreme Court held that only substantial interferences with collective bargaining will be unconstitutional.

In Fraser the court of appeal held that the Agricultural Employees Protection Act 2002 violated agricultural workers' right to freedom of association. In the court of appeal's view, the inclusion of agricultural workers under the Agricultural Employees Protection Act 2002 perpetuated or contributed to the inability of agricultural workers to engage in collective bargaining with their employers. On this basis, the court held that the Agricultural Employees Protection Act 2002 substantially interfered with the ability of agricultural workers to exercise their right to bargain collectively and could not be justified under Section 1 of the charter, which allows limits on charter rights that are demonstrably justified in a free and democratic society. The court of appeal declared the Agricultural Employees Protection Act 2002 to be constitutionally invalid and ordered the legislature to enact legislation within 12 months of the date of the decision that provides agricultural workers with sufficient protections to exercise their constitutional right to bargain collectively. The Ontario government was granted leave to appeal to the Supreme Court of Canada.

Supreme Court decision in Fraser

The Supreme Court allowed the Ontario government's appeal and found that the Agricultural Employees Protection Act 2002 is constitutional. The court rejected the Ontario Court of Appeal's position that Section 2(d) of the charter requires the enactment of significant additional statutory protections for agricultural workers. The majority decision, written by Chief Justice McLachlin and Justice LeBel, determined that the court of appeal had significantly overstated the scope of collective bargaining rights that are protected by the guarantee of freedom of association in Section 2(d). Based on a much narrower approach to collective bargaining under the charter, the majority concluded that the Agricultural Employees Protection Act 2002 satisfies the applicable constitutional requirements because it provides agricultural workers in Ontario with a meaningful process by which they can pursue workplace goals. The majority reiterated that Section 2(d) of the charter does not protect a particular kind of collective bargaining or a particular outcome; rather it protects "the right to associate to achieve collective goals".(9) This right requires the availability of a meaningful right to associate for these collective goals and imposes a duty on employers to consider in good faith the representations of workers. The majority noted that while the duty on employers under the Agricultural Employees Protection Act 2002 to read or listen to representations made through employees' associations did not explicitly require the employer to consider these representations in good faith, any ambiguity in the Agricultural Employees Protection Act 2002 should be resolved by imposing such a duty on employers. The majority held that it was premature to argue that the Agricultural Employees Protection Act 2002 process would not lead to good-faith consideration of employees' representations, as the history was scant and the unions had made no significant attempts to make the Agricultural Employees Protection Act 2002 process work.

Justices Rothstein and Charron concurred in the result reached by the majority, but for different reasons. They would have reversed the Supreme Court's earlier decision in BC Health Services on the grounds that BC Health Services was wrongly decided and the majority decision maintained an unworkable distinction between the process of collective bargaining and collective bargaining outcomes.

Implications

The decision in Fraser is significant for clarifying the decision in BC Health Services. In fact, the Supreme Court's decision in Fraser must be viewed as a significant retrenchment from the broader reasoning in BC Health Services. The Supreme Court emphasised in Fraser that Section 2(d) of the charter requires that employees' associations be able to participate in a meaningful workplace process with an employer, which includes the right to make representations to the employer and to have those representations considered by the employer in good faith. In the Supreme Court's words, only legislation that "makes good faith resolution of workplace issues between employees and their employer effectively impossible"(10) will violate Section 2(d). This is a considerably narrower view of Section 2(d) than that taken in BC Health Services.

Also notable is the Supreme Court's rejection of the Ontario Court of Appeal's determination that BC Health Services requires lawmakers to enact a particular labour relations model or specific statutory requirements in order to comply with Section 2(d) of the charter. The Supreme Court considered the court of appeal's decision to be an overstatement of BC Health Services. The Supreme Court stated that the court of appeal's finding that certain aspects of Canada's labour relations system are constitutionally required by Section 2(d) was "at odds"(11) with the reasoning in BC Health Services. It is now clear that Section 2(d) of the charter does not require the enactment of a particular model of industrial relations or a particular method of collective bargaining.

The most relevant aspect of Fraser for the employer community is that eight of the Supreme Court's nine judges had little difficulty concluding that the Agricultural Employees Protection Act 2002 does not violate Section 2(d) of the charter.